Keep it simple: Affidavits

Most affidavits in legal proceedings make this allegation by rote: "I am duly authorised to depose to this affidavit". But that begs the question, does a deponent to an affidavit need be authorised?

7 Dec 2021 1 min read Article

At a glance

  • In legal proceedings, the allegation of being authorized to depose to an affidavit is unnecessary and irrelevant.
  • According to the Supreme Court of Appeal in previous cases, the deponent to an affidavit does not require authorization from the party concerned.
  • A deponent to an affidavit is simply a witness stating facts within their personal knowledge, similar to a witness testifying orally, and they do not need authorization to do so.

Common sense says that the answer must be a resounding no; that this allegation in an affidavit is both superfluous and irrelevant. Who needs to be authorised to tell the truth? A deponent to an affidavit is simply testifying to her personal knowledge.
In Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) Justice Streicher said: "The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised."

Justice Mabindla-Boqwana giving the unanimous judgement of the Supreme Court of Appeal in Masako v Masako and Another (724/2020) [2021] ZASCA 168 (3 December 2021) was faced with the same issue. Relying on the Ganes decision she found that;

"[i]t stands to reason that a deponent to an affidavit is a witness who states under oath facts that lie within her personal knowledge. She swears or affirms to the truthfulness of such statements. She is no different from a witness who testifies orally, on oath or affirmation, regarding events within her knowledge. Thus, when Ms Moduka deposed to the founding affidavit, she needed no authorisation from her client.”

Common sense and the law aligned.

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to our full terms and conditions. Copyright © 2024 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us